Janesville property owners pay for tree removal

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Marcia Nelesen
Sunday, August 5, 2012

— Dennis Luebke knows he’ll eventually have to pay thousands of dollars to take down four ash trees on his terrace after they’re killed by the emerald ash borer.

In Beloit and in many other communities, Luebke would not have to pay to remove the trees. In those communities, the cities use property taxes to pay for terrace tree removal.

Among eight area communities contacted by The Gazette, only Janesville requires residents to bear the cost of terrace tree removal. Janesville also is the state’s largest community without a forestry program.

Janesville requires abutting property owners to maintain and pay to remove terrace trees even through the terrace is controlled by the city.

Tom Presny, Janesville city parks director, predicts that most ash trees in the city will be dead in three to five years.

A lawyer who specializes in tree ownership doesn’t believe Janesville legally can put the onus of removing terrace trees onto property owners, although others interviewed said the city has the necessary authority.

Luebke, 1605 Sherman Ave., said Janesville’s ordinance doesn’t seem quite fair.

The trees were there when Luebke moved into his home years ago. Several are at least 30 years old. He wondered jokingly why the former owner hadn’t thrown in an oak or a maple.

Luebke knows the city controls the trees, but he maintains them. He knows he can’t protest if the city plants new trees once Luebke removes the ash trees.

“The city has it both ways,” Luebke said.

At the very least, the city should share the cost of taking down the trees, he said.

Aaron Imbach, 914 Martin Road, didn’t even know he had an ash tree on his terrace until a reporter knocked on his door. He was shocked to hear he would be required under current ordinance to pay to take it down.

“It’s a little discouraging that I should have to pay for anything that I don’t own,” he said.

Others are more accepting.

“I planted that tree,” said Francis Eider, who lives across from the Rock County 4-H Fairgrounds in the home he built in 1948. He accepts responsibility for the tree.

“If it goes down, it goes down,” Eider said.

He doubts, though, that he would plant another tree at age 90, he said with a smile.

Janesville city staff do not yet have a recommendation on how the city should handle the devastation expected from the emerald ash borer.

Costs will start showing up in the 2013 budget.

The city estimates 3,100 ash trees are on Janesville terraces. Another 30,000 trees are equally divided among city parkland and private property.

In the 1960s, the city removed terrace trees stricken with Dutch elm disease. Sometime in the 1970s, the city council passed an ordinance making property owners responsible for terrace trees, Presny said.

Differing opinions

An Ohio lawyer who specializes in tree and neighbor law said he doesn’t believe the city can require property owners to pay for terrace tree removal. Victor Merullo of Columbus, Ohio, speaks at gatherings of tree professionals.

Others, however, say assessing residents for terrace tree removal falls within a city’s authority.

Merullo said ownership usually determines liability and responsibility.

“The homeowner has no ownership in the trees,” Merullo said. “If they have no ownership interest in the tree, nor have control—I don’t think they (the city) have any ability to assess the homeowners to remove the tree, especially if it’s been attacked by the borer.”

Dan Thompson, executive director of the League of Wisconsin Municipalities, said the responsibility for terrace trees is a variation of the sidewalk discussion. Cities determine whether trees are paid for through the general tax levy or special assessment, and cities differ, he said.

Each system has advantages and disadvantages, Thompson said. He predicted it would be difficult for some cities to find money in their budgets to deal with the emerald ash borer, especially in light of state caps on city levies.

Cities typically own the trees, just like the city owns the curb and gutter, Thompson said. Normally, a tree is considered part of the infrastructure, and a property owner isn’t allowed to cut down a terrace tree, he said.

In Janesville, property owners are allowed to cut down terrace trees, City Manager Eric Levitt said.

Thompson said he believes a city has the power to require property owners to maintain terrace trees.

“If somebody has a newer legal theory they want to test out in court, fine,” Thompson said.

But a court fight wouldn’t change the “hard reality” that the ash trees will have to be removed. Removing trees will cost somebody thousands of dollars, he said.

Janesville city staff are formulating a recommendation to take to the city council this fall, Levitt said.

The recommendation likely will address who should pay to take the trees down and who should pay to plant new trees, he said, noting both will be a major cost.

Other communities

Among area communities, Janesville appears unusual in requiring residents to pay to remove terrace trees.

In Beloit, nobody touches trees on the terraces except city workers. If residents want trees trimmed, they call the city, and a city forestry crew does the job.

Although the city of Beloit pays for trees, it still requires property owners to maintain their sidewalks.

“I’m not sure there are any best ways or right ways,” said Larry Arft, Beloit city manager.

Elkhorn, Whitewater, Lake Geneva, Evansville, Delavan and Edgerton all accept responsibility for removing terrace trees. In Evansville, the city installed a wood burner in its public works garage to reduce its energy costs by burning wood from trees it cuts down.

“We recognize it’s our property,” City Administrator Sam Tapson said. “Most likely, we planted them. We maintain them.

“We do rely on property owners to trim them on occasion.”

Last updated: 5:13 pm Tuesday, August 27, 2013

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